The group had expressed concern that making it mandatory would serve as a disincentive to ride and was a case of cyclists “being singled out”.
Its chief executive, Craig Meagher, welcomed the government’s about-turn and the “strong, working relationship” the two bodies had developed in consulting on the issue.

IBalla DCJ in Moutia Elzahed Anors v Commonwealth of Australia and State of NSW [2016] NSWDC 327 has declined to permit Moutia Elzahed to give evidence with her face covered.

The judgment states

This is a claim by four plaintiffs [Moutia Elzahed, Hamdi Alqudsi, Hamza George and Abdulla George] for damages for injuries each of them say they sustained during the execution of a search warrant at their home on 18 September 2014. The AFP is the first defendant, and the New South Wales Police is the second defendant. Liability is in issue.

The first plaintiff is the wife of the second plaintiff, and the mother of the other two plaintiffs. She is a religious Muslim. She wears what I understand is a niqab; that is, her whole body, other than her eyes, is covered. Senior counsel for the plaintiffs informed me earlier today that he intended to call the first plaintiff to give evidence. The issue then arose as to whether she should give that evidence with her face covered or uncovered. Just before I adjourned I was told that the first plaintiff refused to give evidence with her face uncovered.

Since I have resumed after lunch, I have offered other courses to the first plaintiff, that her evidence be taken while she is in a remote room, her face would be uncovered, but she could choose not to see who is watching her give evidence and/or I close the Court so that only lawyers involved in the proceedings would be in the Court. She has decided not to do so.

It is my role to ensure that there is a trial which is fair to all parties. I must balance on the one hand the need to respect the first plaintiff's religious beliefs. In this case, those beliefs mean that she may choose not to give evidence which could impact on the successful prosecution of her case.

On the other hand, I must take into account whether I would be impeded in my ability to fully assess the reliability and credibility of the evidence of the first plaintiff if I am not afforded the opportunity of being able to see her face when she gives evidence. I am well aware that the demeanour of a witness and the viewing of their face is not the only way in which credibility is assessed. In some cases the demeanour of a witness may be misleading. However, neither of those considerations can, in my view, mean that I should be completely deprived of having the assistance of seeing her face to assess her credibility.

I have only heard the evidence of one of the sons. However, yesterday I asked senior counsel for the plaintiff whether there will be a conflict in the evidence as to what actually occurred, and he replied that there is bound to be. He agreed that I will need to make a finding about whose evidence I prefer.

As the resolution of the likely conflict in the evidence as to exactly what occurred that morning is essential to the determination of the proceedings or the part of the proceedings involving the first plaintiff at least and the assessment of the weight to be given to the evidence of the first plaintiff is part of that exercise, I have decided that she can only give evidence with her face uncovered. I decline to permit her to give evidence with her face covered.

Elzahed featured in v Commonwealth of Australia [2015] NSWDC 271, of interest to defamation scholars regarding the imputation through 'vulgar language' that she was 'an unpleasant woman'.

In that judgment the Court stated

Although not strictly speaking a defence, the defendants submitted that the matters complained of, and in particular the statements allegedly made to the first plaintiff, would be likely to be struck out at trial as not being defamatory, on the basis that they were vulgar abuse.

Vulgar abuse and defamatory meaning

The fact that an offensive word appears, or that the publication was made in an angry tone and voice, does not necessarily mean that the publication amounts to a mere abuse. The question is whether or not the matter complained of conveys more than just insulting words. If no defamatory act or condition is capable of being conveyed, then the matter complained of is more likely to amount to mere insult or “vulgar abuse”. It is only in those circumstances that the language will be regarded as merely offensive and vituperative and therefore not actionable: Ralston v Fomich (1992) 66 BCLR (2d) 166 at 169 (SC).

In Mundey v Askin [1982] 2 NSWLR 369, the first case in New South Wales to consider “vulgar abuse”, the defendant, the Premier, said about the plaintiff, during a long speech about his activities: “But don't under-estimate some of these vermin”. The jury found that the whole publication was not defamatory and Mr Mundey appealed. The Court of Appeal upheld the trial judge’s directions to the jury on the basis that the trial judge’s reference to “vulgar abuse” was in the context of whether or not “vulgar abuse” could damage reputation, which would have the effect of rendering a publication not being defamatory.

In Bennette v Cohen the defendant gave a speech at a fundraiser to raise funds for a person who had previously been sued for defamation by the plaintiff. The imputations included an imputation that “the plaintiff has done illegal work which severely damaged the environment”, which the jury considered was not defamatory of the plaintiff (imputations that the plaintiff was a “thug” and a “bully” were, however, found to be defamatory). In holding that the jury’s finding was within the range of conclusions reasonably available, the court noted (at [25]) that in considering whether an imputation was defamatory, it was for the jury to consider the meaning of the words and of the imputations in the context in which they were spoken, namely an address to a meeting. At [46]–[51] Bryson JA analysed the law relating to “vulgar abuse” and concluded (at [51]):

“In my opinion it is clear from the passage I have set out from Mundey v Askin that there is not a dichotomy between vulgar abuse (or mere vulgar abuse) on the one hand and defamatory matter on the other, and that it does not follow from establishing that the matter complained of was mere vulgar abuse that it was not defamatory. What is for decision is whether the words spoken bore a meaning that was likely to affect the reputation of the person spoken of. “Vulgar abuse” and “mere vulgar abuse” are not terms of art nor are they capable of high definition or detailed exposition; but in determining the meaning of words used and whether their meaning was defamatory it may be open to consideration whether the terms used and the context in which they were used were such that there was no likelihood of their affecting the reputation of the person spoken of; that no notice would be taken of them. This would not be the right conclusion on all statements which could accurately be described as vulgar abuse or mere vulgar abuse; much vulgar abuse is highly defamatory.”

In Tory v Megna, the s 7A trial jury rejected a submission that the “rubbishy nature” of 17 anonymous newsletters, which accused the plaintiff (inter alia) of being “vermin”, meant that they were “junk mail”, incapable of conveying a defamatory meaning. The Court of Appeal (at [54]) dismissed the appeal on the facts, holding that the newsletters were “a serious attempt to communicate information.”
In Echo Publications Pty Ltd v Tucker and Anor; Fast Buck$ v Tucker and Anor a submission that an imputation that the plaintiff was a “bully” was not defamatory was dismissed. Hodgson JA noted at [130]:

“Turning to imputation (h), namely that Mr Tucker was a “bully”, it seems to me that that is an imputation which, because of its vagueness, might possibly have been considered not likely to cause an ordinary reasonable person to think less of Mr Tucker or to shun or avoid him. It is true that the circumstance that something might be considered “vulgar abuse” does not prevent it from being defamation; but the circumstance that this imputation may be considered mere abuse may permit a jury to conclude that the imputation is one which in the circumstances is not likely to cause ordinary reasonable persons to think badly of Mr Tucker: cf. Mundey v Askin [1982] 2 NSWLR 369 at 371–2; Bennette at [45]–[51].”

It can be seen from the above analysis that different findings as to the defamatory meaning of the words words “bully” and “vermin” have been reached. However, to make anything of this would be to ignore the warning of Bryson JA in Bennette v Cohen at [57], namely that “the nature of defamation is that there are no close analogies” and that it is dangerous, when determining whether imputations are defamatory, to have regard to other cases concerning specific words.

For these reasons, it is necessary to be cautious about whether a word such as “bitch” is capably of conveying a defamatory meaning, as different views have been taken in cases where this word is used, depending on the rest of the context. In Piscioneri v Brisciani [2015] ACTSC 106, Burns J rejected a submission that posts in a forum headed “Bitching and Rants”, which included a series of vile insults (of which “stupid bitch” was one of the more anodyne), were mere vulgar abuse, and awarded the plaintiff damages of $82,000. However, in Wood v Branson (1952) 3 SALR 369 the word “bitch” was considered mere vulgar abuse (see also Blaser v Krattiger (1921) 99 Or 392 (“son of a bitch”), Culverhouse v Cooke Centre for Learning and Development Inc (1998) 177 Misc. 2d 365, 675 NYS 2d 776 (“rich bitch”), Travers v Shane (1995) 4 Mass L Rptr 141 (“fat, fucking, disgusting bitch”)).

However, the distinguishing feature of this publication is that the word “bitch” is more or less all that was said. There is no context to give it flavour, or meaning, of any kind. In those circumstances, it is hard to see how any imputation, let alone the strained claim that the plaintiff is “an unpleasant woman”, could be made out. No imputation can be conveyed by the word “bitch”, for the reasons explained by Garibaldi J in Ward v Zelikovsky (1994) 136 NJ 516, 643 A 2d 972 at 982 – 983:

“The term ‘bitch’ is undoubtedly disparaging. But to hold that calling someone a ‘bitch’ is actionable would require us to imbue the term with a meaning it does not have. Such a holding would, in effect, say that some objective facts exist to justify characterising someone as a bitch. If calling someone a bitch is actionable, defendants must be able to raise the defence of truth. ‘Bitch” in its common everyday use is vulgar but non-actionable name-calling that is incapable of objective truth or falsity. A reasonable listener hearing the word ‘bitch’ would interpret the term to indicate merely that the speaker disliked Mrs Ward [the plaintiff] and is otherwise inarticulate. Although Zelikovsky’s [the defendant] manner of expression was very offensive, our slander laws do not redress offensive ideas.”

Adopting the same approach to the findings of fact necessary for this application as those taken by McCallum J in Bleyer v Google Inc, I am of the view that the first plaintiff’s prospects of success in establishing the first matter complained of conveyed a defamatory imputation are extremely poor.

That would leave only the second matter complained of, namely a statement made by one or more of the defendants’ servants or agents to the parents of the third and fourth plaintiffs that their sons were terrorists. Given the limited extent of publication, the circumstances of the arrest and the family relationship, a defence of unlikelihood of harm would have strong prospects of success.

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